in the Court of Appeals 18 October 2018.
by defendant from judgment entered 18 August 2017 by Judge
Yvonne Mims Evans in Mecklenburg County Mecklenburg County,
Nos. 16 CRS 10028-30, 34Superior Court.
Attorney General Joshua H. Stein, by Solicitor General
Matthew W. Sawchak and Assistant Solicitor General Kenzie M.
Rakes, for the State.
Appellate Defender Glenn Gerding, by Assistant Appellate
Defender James R. Grant, for defendant-appellant.
appeal, we address the question of whether a defendant's
criminal prosecution for violations of North Carolina's
stalking statute infringed upon his constitutional right to
free speech. Brady Lorenzo Shackelford
("Defendant") was convicted of four counts of
felony stalking based primarily upon the content of posts
made by him on his Google Plus account. Because we conclude
that the application of the statute to Defendant's posts
amounts to a violation of his right to free speech under both
the First Amendment to the United States Constitution and
Article 1, Section 14 of the North Carolina Constitution, we
vacate his convictions.
and Procedural Background
State presented evidence at trial tending to establish the
following facts: Defendant met "Mary" on 3 April 2015
at a church in Charlotte, North Carolina prior to the start
of a Good Friday worship service. Mary was employed in the
church's communications department. The two of them were
seated at the same table and briefly made small talk in a
group setting before separating at the beginning of the
service. Upon leaving church that day, Mary did not give any
further thought to her encounter with Defendant.
April 2015, Mary received an email from Defendant on her work
email account that referenced their 3 April meeting and asked
"for help with a company communications plan." Mary
replied to his email later that day, informing him that she
would be happy to assist him and suggesting a time for them
to meet. Defendant responded shortly thereafter, agreeing to
meet Mary on the date she had suggested.
that same night, Defendant sent another email to Mary
"to give [her] some information about [his]
business[.]" In the email, Defendant detailed his plan
to create a new business based in the British Virgin Islands.
In the final paragraph of his email, Defendant wrote that he
would pay Mary "100K out of the convertible note
proceeds AND take [her] out to dinner at any restaurant in
email "set off a lot of red flags" for Mary. On 27
April 2015 she emailed Defendant to "cancel[ ] the
meeting, thinking that his intentions were not really
professional, and informed [her] boss" about the
exchange. Later that day and again on 5 May 2015, Defendant
emailed Mary in an attempt to reschedule their meeting. On 5
May 2015, Mary replied with links to online resources and
wrote: "I won't be able to meet. If you have further
questions, you can contact my boss[.]"
May 2015, Defendant mailed a five-page handwritten letter to
Mary's work address. At trial, Mary testified as follows
with regard to this letter:
The gist of it was that when [Defendant] first saw me at the
Good Friday service he thought he had found his soul mate,
and that the feelings he felt were so intense he couldn't
talk to me. And then he goes on to say that he used the
communications plan to talk to me, to ask me out, rather than
for professional reasons[.]
ended the letter by writing that he was "highly
attracted" to Mary and asking her to go on a date with
him. The following day, Mary gave the letter to her work
supervisors and asked them to intervene on her behalf, and
they agreed to do so. She did not respond to Defendant's
May 2015, Defendant sent Mary a second handwritten letter,
which was seven pages long and mailed to her home address. At
trial, Mary provided a summary of the second letter:
He starts by apologizing for sending this to me without me
giving him my address. He says he found it on a website. And
he also says that he would not harass or stalk me, and that
if I felt uncomfortable to notify him and he would cease
communication. Then he goes on to talk about some of his
personal history, and the last line says that I need to go on
a date with him or tell him to leave me alone.
showed Defendant's letter to her supervisors, who once
again told her that they would handle the situation.
June 2015, Reverend Bill Roth, the Minister of Pastoral Care
at the church, spoke to Defendant over the phone about his
communications with Mary. During this phone call, Reverend
Roth told Defendant "to stop making any contact [with
Mary] and [that] there could be legal actions if he did, and
that the contacts were unwanted." Following this
conversation, Defendant did not send Mary any further emails
of 2015, Mary logged into an account she had created on the
social media service Google Plus. Upon doing so, she
discovered that Defendant had "followed" her
account sometime in late April of 2015 and had made four
separate posts on his own Google Plus account in early June
that referred to her by name. The posts on Defendant's
Google Plus account were not specifically directed to Mary
but were shared publicly on his account where any user of the
service could read them.
first post, dated 2 June 2015, stated that "God chose
[Mary]" to be Defendant's "soul mate." In
the other three posts, Defendant wrote, among other things,
that he "freely chose [Mary] as [his] wife" and
wanted God to "please make [Mary]" his wife. After
viewing these posts, Mary immediately blocked Defendant's
account. Shortly thereafter, she deleted her own Google Plus
account. Mary continued, however, to monitor Defendant's
publicly shared posts by checking his Google Plus page
"[a]t least once a week."
his 9 June 2015 phone call with Reverend Roth, Defendant
continued to post about Mary. None of his posts after that
date referenced Mary by name, although one used her initials
and another referred to her by a shortened version of her
June 2015, Defendant wrote the following post on his Google
There is a woman from my church that is turning me bat crazy.
She is the first thing I see when I wake up in the morning
and the last thing I see before I lay down at night. I
strongly believe that she is an angel in disguise, that she
is the girl that God sent down from heaven for me. I strongly
believe that she is my soul mate, that she is my destiny. My
heart aches for her.
posted as follows on 28 June 2015:
I'm feeling depressed. There's a woman at my church
that I want really, really bad, but she doesn't want me.
I've prayed to God asking him to relieve this pain in my
heart by allowing me to view just a small glimpse of her
angelic face while in church, but God won't even give me
July 2015, Defendant wrote the following post:
I've changed my relationship status because too many
single & looking women are adding me to their circles.
There is only one woman that I want, and her initials are
[Mary's initials]. Even though we aren't dating yet,
you might as well mark me down as being in a relationship
because I am not interested in other women.
posted a message on 2 August 2015 stating that "I
believe the woman who introduced me to my soul mate at my
church's Good Friday service is jealous and envious of my
love for my soul mate and would rather me be with her instead
of my soul mate."
August 2015, a box of cupcakes was delivered to Mary's
office at her work. Attached to the box was a typed, unsigned
note that read: "[Mary], I never properly thanked you
for the help you gave me regarding my company's
communication plan, so, with these cupcakes, please accept my
receiving the cupcakes, Mary filed a police report with
Detective Stephen Todd, an off-duty Charlotte-Mecklenburg
Police Department officer who worked at the church, because
she "felt like she was being stalked." Based upon
Mary's report, Detective Todd applied for an arrest
warrant against Defendant on a charge of misdemeanor
stalking. Defendant was arrested on 14 August 2015 and
subsequently released on bail.
same day that he was arrested, Defendant posted the following
message on his Google Plus account:
A woman I was interested in really, really bad has let it be
known in no uncertain terms that she is not interested in me.
Therefore, with a much heavy heart, I announce that I am
The pain hurts because I dreamt about this woman and believed
that she was my soul mate. How could God be so wrong???
August 2015, Defendant posted another message:
I study all religions, and I have been searching them all for
the past day trying to find something, some quote, that would
console me in my time of heartbreak. I just read something by
Buddha that, instead of consoling me, actually made me angry.
He said, "In the end, only three things matter: how much
you loved, how gently you lived, and how gracefully you let
go of things not meant for you."
My question for Buddha is this: How do you know when
something is not meant for you if you give up at the first
sign of difficulty? Sometimes, God places difficulties in our
lives because he wants us to be persistent in the face of
those difficulties. For example, if a boy really wanted a
girl, and the girl turned him down the first time he asked
her out on a date, should he take Buddha's advice and
gracefully let go of something not meant for him or should he
continue courting the girl with the hope that she will one
day say yes? If every guy let go of the girl who turned him
down the first time, then there would be lots of marriages
that never took place because he wasn't persistent. Had
he been persistent, his persistence would have won her over
by proving to her just how much he loved her. . . .
that same day, Defendant posted as follows on his Google Plus
I have courted three Venus in Scorpios over the years, so I
decided earlier this summer to learn everything that I could
about Scorpios and Venus in Scorpios. I was reading this
website about Scorpios this evening when I read a sentence
that made me break out laughing so hard from the truth that I
nearly died. The author was talking about their obsessiveness
and stated, "Don't run away (you'll only be
stalked)." I LMAO because I saw the behavior in all
three women. Moreover, the Scorpio Ascendant in me completely
understood where they were coming from.
August 2015, Mary filed a petition for a no-contact order
against Defendant in Mecklenburg County District Court. On 1
September 2015, the Honorable Becky Tin issued an order
prohibiting Defendant from contacting Mary or "posting
any information about [her] on social media."
that month, Defendant authored the following post on his
Google Plus account on the same date that Mary attended a
Carolina Panthers football game: "Who is your favorite
Carolina Panthers cheerleader? Mine is . . . I'm not
telling, least [sic] I upset my Venus in Scorpio future wife.
. . ." On 28 September 2015, Defendant posted: "OK,
I've teased my Venus in Scorpio long enough. My favorite
Carolina Panthers cheerleader is Emily. If she shows up
missing, [shortened form of Mary's name], I'll know
who to blame."
weeks later, following a heavy rainstorm in South Carolina -
where Mary's family lives - Defendant posted: "South
Carolina got pummeled with rain. I pray my future wife's
family is OK." On 4 October 2015, Defendant posed the
following question on his account: "If you really loved
someone and wanted to be with them forever, would you fly
down to the Caribbean and secretly elope with them on a
undated Google Plus post that was introduced as evidence at
his trial, Defendant wrote, in relevant part, as follows:
I would love to learn more about the dynamic between me and
my future wife, but I don't know her personality type. I
do know that she is either an INFJ or an INFP because of a
pin on her Pinterest board. Unfortunately, her pin is
confusing because she says that she is an INFP while the
image she pinned is that of an INFJ. I guess I will just have
to study both of them.
November 2015, Defendant sent an email to a close friend of